The FY2006 budget request for the United States Patent and Trademark Office includes some amazing statistics on adoption rates for electronic filing:

For 2004 (estimated figures), a full 75% of trademark applications were filed electronically — three of every four. On the patent side, only 4% were filed through the Electronic FIling System (EFS).

I’ve always known the adoption rates of electronic filing were vastly different, but I had no appreciation for the spread until I saw those numbers in black and white. Will the patent system ever reach such high adoption rates? As I’ve said before, I don’t think it will even come close as long as the current Electronic FIling System (EFS) is in place. Under the current system, most practitioners have zero incentive to file patent applications electronically. I seriously doubt the system will even see the 10% projected for next year without a serious overhaul.

According to Government Computer News, President Bush’s FY2006 budget request includes $80M for the Patent Automation System to develop an electronic process for patent applications.

What in the world does that mean? On first glance, this snippet gave me hope that an improved electronic filing system (EFS) is on the way (I’m looking for reasons to have hope these days…). But, after thinking about it for awhile, I’m a little confused. The money goes to the “Patent Automation System.” I have no idea what this “system” does or who has access to it. Is it an umbrella term that encompasses the EFS and other electronic systems at the office? A Google search of uspto.gov for the PAS gives only two results, neither of which provide much insight.

Does anyone have any insight on the PAS and its purpose? An idea on what these monies would be used for would be a bonus…

Thanks to Nipper for the tip.

InsideBlogging recently announced its 2005 Business Blogging Awards. PHOSITA was named the best legal blog. This is well-deserved recognition for Doug Sorocco, the king PHOSITA himself. Join me in congratulating Doug for this award.

IP blogs are establishing a track record with the various blog awards out there. Remember, Dennis Kennedy named the intellectual property blogs the Best Legal Blog Sector in his 2004 Legal Blogging Awards (the Blawggies).

Representative Mike Simpson (ID) introduced H.R. 784 (.pdf) on February 10, 2005. The bill, dubbed A bill to Clarify that service marks, collective marks, and certification marks are entitled to the same protections, rights, and privileges of trademarks, is identical to S. 2796/H.R. 5194 introduced in the 108th Congress.

I haven’t been able to locate any significant comments on the introduction of the new bill, but everything from the prior bills is still relevant. This prior PTP post discusses the bills from the 108th Congress.

The bill is designed to specifically address the decision of the Second Circuit Court of Appeals in Idaho Potato Commission v. M&M Produce Farm and Sales (.pdf) (335 F.3d 130, 2d Cir. 2003). In Idaho Potato Commission, the court interpreted the Lanham Act as requiring that certification marks be treated differently than trademarks with respect to “no challenge” provisions in license agreements. Under an agreement that includes a “no challenge” provision, the licensee acknowledges and agrees not to challenge the validity of the mark.

Many courts have upheld “no challenge” provisions in trademark license agreements and dismissed validity challenges brought by the licensee. Patent license agreements, however, are treated very differently. In Lear v. Adkins (395 U.S. 653, 1969), the Supreme Court explicitly overruled precedent establishing licensee estoppel. In Lear, the Court acknowledged that, considering the preclusive effect of patents, it is desirable to encourage challenges to the validity of a patent. The Court stated that “[l]icensees may often be the only individuals with enough economic incentive to challenge the patentability of an inventor’s discovery.”

In Idaho Potato Commission, the Second Circuit Court of Appeals ruled that “no challenge” provisions in license agreements for certification marks are governed by Lear, reasoning that the policy considerations underlying certification marks is more analagous to patent policy than trademark policy.

H.R. 784 is designed to remove this newly-established distinction between certification and other types of marks.

The United States, Japan and Europe are working to overhaul the mechanism by which patent law harmonization discussions are held.  These countries recently received critical support for their joint proposal to change the course of harmonization discussions.

The US Patent and Trademark Office, along with other participants from the recent  Exploratory Meeting of Interested Parties Concerning the Future of Substantive Patent Law Harmonization, recently issued a statement of intent regarding future harmonization efforts.

According to the statement, the participating countries agreed to convene further meetings to consider the “trilateral first package,” a proposal made by the USPTO, the European Patent Office, and the Japan Patent Office to limit harmonization discussions to certain issues in an attempt to advance the effort.  The trilateral offices made the “first package” proposal because they view the current model for discussion of harmonization efforts as “not workable.”

The “first package” deals only with prior art issues.  Specifically, the definition of prior art, grace period, novelty, and non-obviousness/inventive step.  Interestingly, the first package proposal notes that, “since grace period and first-to-file are linked, grace period, although included in the first package for discussion, is subject to movement on first-to-invent.”

Participants at the USPTO meeting (and signatories to the Statement) include representatives from the United States, Europe, Japan, Canada and Australia.

We are blessed in the Toledo area to have a very friendly patent bar and an active association of patent professionals, the Toledo Patent Law Association (TPLA). For decades, TPLA has kept an active calendar of meetings with fascinating speakers, including local business people, representatives of the Patent and Trademark Office, and federal judges, among others. In many ways, TPLA rivals and, I think, bests the professional organizations available to patent attorneys in cities much larger than Toledo, Ohio.

I recently described Promote the Progress to TPLA members, and hope that many will become regular readers of the blog.

Soon I will be adding a special page designed specifically for TPLA members. The page will be accessible by clicking on a ‘TPLA Quick Link’ on the main page and will provide an overview of current legislative and/or regulatory issues affecting patent practice. The overview will mimic the summaries I will be presenting at future meetings. Keep an eye on the blog for this feature…

Welcome TPLA!

Dennis Kennedy has a wonderful post today that explores the question: Is There Still Room for Small Firm or Solo Lawyer Blogs? He asks the question as part of his By Request Tuesday feature and in light of the recent focus on blogging by big firms. I was glad to learn that Dennis answers this question with a resounding (and well-reasoned) yes.

Reading that post made me think about the whole gestalt of blogging in light of the coming (tidal?) wave of bfb’s (big firm blogs). I have explored the bfb issue in the past, but Dennis’ post made me think about it in terms of my own existence, which is always an interesting perspective on any issue. I firmly believe that the difference between bfb’s and blogs by solos and small firms will be one of passion. In a recent post for the anniversary of PTP, I explored the question of why I blog…and gave this simple answer: passion. This one word defines the entire blogging experience for me. Sure the blog helps with client development (a little), but my passion for intellectual property law, computers, technology, and writing is the driving force.

I suspect most bfb’s will lack this passion, making them easy to spot. Associates will blog for credit (real or perceived), not passion. Partners will supervise by committee, which will likely drain any passion that may be present.

I do think a surge of bfb’s will benefit the blawgosphere generally, though. Big firms will attract a lot of attention, and should nudge more and more people into the blawgosphere. Big firms have big networks and big marketing budgets. Their entry into the blawgosphere will attract lawyers and non-lawyers alike. Some of those people will start using RSS, follow links and conduct searches and, one day, discover the passion present in solo and small firm blogs.

David Swanner of the South Carolina Trial Law Blog has posted his list of Twelve Ways Technology Can Make You a Better Trial Lawyer as a guest contributor to the Notes from the (Legal) Underground blog. I think the post is interesting from a general perspective for two reasons:

First, five of the dozen items involve blogs. Five. Nearly half. I think a similar list could be made for each specialization in the law, and suppose that all of these lists could include the same five items.
Second, Al Nye made a simple comment regarding the entire list that, I believe, summarizes the state of blog-adoption by the legal community: “Now if lawyers could only learn to use those products…”

I still have the impression that lawyers (all of us; not just particular specializations) are generally unaware of the wealth of information available in blogs. Its not that lawyers are ignoring blogs or making choices against the use of blogs. I think most lawyers have no idea of the value that blogs offer. Of those that ‘know about’ blogs, very few are actually using them in their daily practice. This is particularly frustrating with blogs because RSS technology makes it so simple to incorporate these resources into a practice.

I guess we’ll just have to keep trying to get the word out...

India is in the midst of a radical overhaul of its patent system, largely due to the yet-to-be finalized amendments to its patent law that extend patent protection to products, including pharmaceuticals.  According to this article about a recent meeting organized by the Indian commerce ministry in association with the World Intellectual Property Organization (WIPO) and the Federation of Indian Chambers of Commerce and Industry, the reform effort will now turn to the intellectual property ‘infrastructure.’

The article doesn’t explain specifically what is meant by the term ‘infrastructure’ in this context.  I suppose the term refers to the administrative process for acquiring patents in India and the legal system for enforcing them.  But, considering the number of quotes in the article relating to the benefits of the new changes to the law, you have to wonder if the meeting, Promotion, Protection and Enforcement of Intellectual Property Rights, was simply held for propaganda purposes.

Remember, the changes to the patent law still must be approved by the Indian Parliament.  The political body is expected to consider the amendments beginning next month.

If you’re new to the world of blogs and you have questions about the whole RSS thing, please check out this RSS 101 Screencast from Alex Barnett. In just a few minutes, Alex delivers a wonderful visual tutorial on getting started with RSS.

To get started with intellectual property blogs and RSS, I recommend viewing Alex’s screencast and then reading this prior PTP post on Getting Started with IP Blogs. You’ll be reading a fine collection of IP blogs via RSS in no time!

On a side note, I discovered Alex’s screencast via the Web Tools Collection blog, which is maintained by Mark (Madhujit) Ghosh, a fellow Toledo Blogger.